Every year, the number of individuals and couples who rely upon assisted reproduction technology to conceive a child increases. There have been tremendous and incredible advances in assisted reproduction science in the past 50 years. In 1978, the world watched in wonder as the first “test tube baby” was born – a child who was conceived by creation of an embryo being outside of a woman’s body and then implanted in a woman’s body for gestation. Since the birth of the first “test tube baby,” there have been many advances in assisted reproductive technology and children are conceived and born in ways that involve more than simply a woman getting pregnant as the result of sexual intercourse with a man. Assisted reproductive technology and practice has evolved in the past 50 years to the point where a woman may bear a child who has no genetic relationship to either herself or to her spouse or partner – such as when a donor egg and donor sperm are used, or a donor embryo is used by a couple.
Despite the multitude of ways in which children may be conceived, North Carolina has exactly one statute addressing the rights and status of children conceived through a method other than intercourse between a man and a woman – that assisted reproduction statute provides as follows:
Any child or children born as the result of heterologous artificial insemination shall be considered at law in all respects the same as a naturally conceived legitimate child of the husband and wife requesting and consenting in writing to the use of such technique.
N.C.G.S. §49A-1 (1971).
What is “heterologous artificial insemination,” you may ask. Heterologous artificial insemination is a procedure in which donor sperm is medically inserted into a woman’s uterus with the intention of conceiving a child. In other words, the child is conceived within the body of the person who will carry and give birth to the child. The first “test tube” baby was born only seven years after North Carolina enacted its one and only statute dealing with parentage of children born through the use of assisted reproduction – so by 1978 it should have been clear that the 1971 statute was already outdated and did not anticipate advances in medicine. It is not an exaggeration to say that North Carolina’s laws regarding parentage have not kept pace with the science and practical realities of how two people may become parents in North Carolina.
Our laws as written assume that children have two parents – one male and one female – and that a man and a woman conceive a child through sexual intercourse or through the use of donor sperm that is inserted into the body of a married woman. In other words, our custody laws only address very specific subsets of children: children born as a result of a man and a woman engaging in sexual intercourse or children born to a married couple and which are the result of the use of the wife’s egg and donor sperm and who are gestated by the wife. In 1971, the General Assembly could not have foreseen the many ways in which children are conceived and families are created today, but by 1978 when the first “test tube” baby was born, it should have been clear that advances were being made. While our trial courts undoubtedly frequently deal with custody and child support cases involving children who were conceived in a method other than sexual intercourse between a man and a woman or through artificial insemination of a wife with sperm of one other than her husband, the reality is that our law does not, as written, address children born as the result of any other types of procedures. If, for example, a married couple uses a donor egg and a donor sperm or uses a donor embryo, N.C.G.S. §49A-1 would not operate to treat that child as the legitimate child of Husband and that child would have no biological relationship with the woman who gave birth to her. This is just one of many types of scenarios that can easily be imagined in the context of assisted reproduction.
There is no telling why our statutes have not kept up with the science and medicine of reproduction and birth, but the effect of this failure is that children who are not the result of sexual intercourse between a man and a woman or the result of a married man and woman’s use of heterologous artificial insemination do not have the same legal status as do children who are born in those specific situations. Attorneys who represent parties in custody cases involving children born through the use of assisted reproduction technology must have a firm grasp on the law and must be able to make complex and creative arguments to fit these factual situations into the existing laws that do not fully cover these situations. The attorneys at Collins Family & Elder Law Group have the knowledge and skill to assist you in these complex types of custody cases. If you are involved in a custody case in which your child was conceived through the use of assisted reproduction, call us to schedule a consultation and discover how we can help you.
